FEDERAL COURT OF AUSTRALIA

SZSXH v Minister for Immigration and Border Protection [2014] FCA 914

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(EX TEMPORE)

1    This is an appeal from the Federal Circuit Court of Australia (“FCCA”) (Judge Nicholls) (SZSXH v Minister for Immigration and Anor [2014] FCCA 1232) dismissing an application seeking review of the decision of the Refugee Review Tribunal (“Tribunal”) to affirm the decision of a delegate of the first respondent (“Minister”) to refuse a protection visa to the appellant.

2    My review of the Tribunal’s Statement of Decision and Reasons (AB 341–AB 359), the reasons for judgment of the FCCA, and the grounds of the notice of appeal, have led me to the conclusion that the appeal has no merit and must be dismissed.

3    The appellant’s notice of appeal raised four grounds:

(1)    The FCCA erred in finding that the Tribunal had not failed to properly consider the appellant’s claims under ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

(2)    The FCCA erred in finding that it was open to the Tribunal to determine the nature of the letter related to the appellant’s religious claim.

(3)    (i)    The Tribunal did not adequately consider the appellant’s claims under the Complementary Protection ground;

(ii)    the Tribunal failed to consider the appellant’s claims cumulatively, including the claim of religious harm and his activities in Sri Lanka supporting the Tamil activities;

(iii)    the Tribunal failed to assess the appellant’s activities in Australia under s 36(2)(aa) of the Act.

(4)    The Tribunal did not ask relevant questions as to the appellant’s claim of fear on account of his religion, despite his religion being mentioned in a letter to the Department.

Ground One

4    My review of the material referred to below, leads me to the conclusion that the FCCA was correct to find no failure by the Tribunal to consider a religious claim, for the reason given by his Honour. No appellable error is demonstrated.

5    An analysis of the material before the Tribunal makes plain that the appellant advanced no claim to fear persecution or harm by reason of his religion. The appellant mentioned his Catholic religion by way of background only. Further, and contrary to ground four of the notice of appeal, the appellant also had ample opportunity to make such a claim and he did not.

6    The appellant was interviewed on arrival in Australia (at an “entry interview”):

(1)    The record of that entry interview indicates that the appellant was asked various questions, including those designed to elicit details of any protection claims. The answers provided by the appellant in response to questioning do not mention the appellant’s religion, except in answer to question 18, where the appellant’s religion is recorded as Catholic (AB 70).

(2)    The questions asked of the appellant included one question concerning whether, apart from what the appellant had already told the interviewer, the appellant had any further claims. No mention was made of any religious claim.

(3)    The appellant was asked at the entry interview whether he was a member of any particular social or religious group. The appellant said he was a member of the church which provided the letter referred to in [8] below. The appellant said he was not a member of this church any more, and that the letter of support was in the nature of a character reference (AB 77).

7    In the statement submitted with his protection visa application (AB 159), the appellant began by stating details of his name, age and location of birth. He stated: “My ethnicity is Tamil and my religion is Christian Catholic”. This information was provided under a heading “Background Information”. The next heading was “Why I left my home country”. Under this heading, the appellant’s religion was not mentioned at all. Under the heading “Why I believe they will harm or mistreat me if I go back”, the appellant referred to his Tamil ethnicity and suspicion of being a former member/supporter of the Liberation Tigers of Tamil Eelam (“LTTE”), and no other reason. Aside from the sentence concerning background information, the appellant’s Christian religion was mentioned nowhere in his statement of claims.

8    The appellant had earlier provided a letter from a Sri Lankan church (AB 84). The church letter made mention of the appellant’s Tamil ethnicity and did not suggest, either expressly or by implication, any religious-based claim.

9    There is nothing in the delegate’s decision, including the delegate’s summary of interview, that suggests the appellant advanced any religious claim.

10    The appellant’s representative provided a voluminous submission to the Tribunal (AB 253). Relevantly:

(1)    At page 2, the appellant claimed to be of Tamil ethnicity and identified himself as being a Catholic (AB 254).

(2)    At page 2, under the heading “applicant’s claims”, it was indicated that the appellant’s fear of persecution was for reason of ethnicity, imputed political opinion, and membership of particular social groups (AB 254). (See also page 11) (AB 263).

(3)    On page 6, the submission commented on the delegate’s decision. The submission did not suggest that the delegate had overlooked a religious claim (AB 238).

(4)    From page 72 (AB 324), the submission addressed complementary protection. The submission said that the appellant fell within the definition of a refugee, however, should this claim be rejected, he faced a real risk of significant harm. This claim was never developed otherwise than by general reference back to the appellant’s claims and unspecified country information.

11    In its reasons, the Tribunal mentioned the appellant’s religion at [3], and accepted he was of Christian Catholic religion at [20], and repeated that at [30].

12    I accept that the Tribunal may commit a jurisdictional error where it fails to consider a claim put forward on the material before it, even though the claim is not expressly articulated. However, for that principle to be engaged, the claim must be one which emerges clearly from the materials before the Tribunal. The exposition of such a claim cannot depend on creative activity by the Court: see, for example, NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]. On any plain reading of the entirety of the material before the Tribunal, the appellant made no religious claim and, for that reason, ground one cannot be sustained.

Ground Two

13    Before the FCCA, the appellant argued that the Tribunal had erred by failing to consider an item of documentary evidence, being the church support letter referred to in [8] above. I propose to construe ground two of the notice of appeal consistently with that argument below.

14    In my view, the FCCA correctly held that the Tribunal’s omission to directly cite the church support letter in its findings and reasons had no jurisdictional consequence.

15    The support letter was identified by the appellant at the entry interview as a character reference. It was for the appellant to indicate the significance of the letter, if any, particularly in the context where he himself had effectively dismissed its significance at the entry interview. The appellant’s comprehensive written submission to the Tribunal did not mention the letter. Given the letter’s contents, that is not surprising. The letter was so highly generalised that it was not capable of corroborating the appellant’s claims.

16    In my view, there is no evidence that the Tribunal overlooked the church letter, as distinct from regarding it as irrelevant. The Tribunal was under no obligation to refer in its statement, under s 430(1) of the Act to evidence that was not a reason for its decision and which was not evidence upon which its findings of fact were based. Accordingly, given the terms of that section, it cannot be inferred from the fact that the letter was not mentioned in the statement of reasons that it was not considered by the Tribunal: see, Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 at [21]–[23]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, especially the joint judgment at [68]–[69].

17    Even if the Tribunal did overlook the letter, that does not demonstrate jurisdictional error, given the letter’s insignificance. A failure to consider an item of evidence may demonstrate jurisdictional error where it is found, both, that the evidence was overlooked and that it was of some import when regard is had to its cogency and its significance to the decision-maker’s reasoning: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [112]. Neither matter is established in the instant case. The learned primary judge was correct in so finding, and, for that reason, ground two of the notice of appeal cannot be sustained.

Ground Three

18    This ground contains three limbs. As a preliminary matter, the function of this Court on appeal is to determine whether there was any error made in the decision of the FCCA, and not in the findings of the Tribunal: see, Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]; SZAJB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. The appellant’s third ground raises an argument that was not ventilated before the FCCA.

19    With respect to the complaint that the Tribunal did not adequately consider the appellant’s claims under the Complementary Protection criteria, the Tribunal expressly considered whether the appellant was owed protection obligations pursuant to the complementary protection criteria, from about [30] of its Statement of Decision and Reasons. The appellant advanced no discrete separate or independent complementary protection claims (AB 327). The Tribunal gave consideration to the appellant’s claims and its findings of fact, which remained pertinent to its assessment, pursuant to the complementary protection criterion. The Tribunal concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk the appellant would suffer significant harm. No jurisdictional error is therefore disclosed.

20    With respect to the complaint that the Tribunal failed to consider the appellant’s claims cumulatively, including claims concerning religious harm and activities in Sri Lanka supporting Tamil activities, I have already dealt with the matter of the absence of any religious claim being put to the Tribunal. The Tribunal expressly considered the appellant’s claims concerning his Tamil ethnicity and claimed actual or imputed political opinion as supportive of the LTTE from about [23] of its Statement. The Tribunal concluded the appellant faced no real chance of serious harm for such reasons at [26] and [28] of its Statement, and therefore, no jurisdictional error is disclosed.

21    With respect to the third limb of this ground – that is, the complaint that the Tribunal failed to consider the appellant’s claimed activity in Australia under s 36(2)(aa) of the Act – this contention bears no resemblance to the appellant’s factual claims nor the Tribunal’s findings. This is not a case in which the appellant claimed to have engaged in activity in Australia which the Tribunal disregarded in accordance with s 91R(3) of the Act, but which the Tribunal was nevertheless required to assess pursuant to the complementary protection criterion.

Ground Four

22    The Act does not require any particular form of questioning of an appellant by the Tribunal, provided it complies with its statutory obligations to invite the appellant to give evidence on the issues arising from the review. It was for the appellant to make out his case: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. The Tribunal was not obliged to inquire further, and was not obliged to prompt and stimulate an elaboration of the appellant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [1], [42] and [43]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [54]; [85]–[86].

23    Throughout the course of the review, the appellant had ample opportunity to advance a religious claim. The opportunity included at the Tribunal hearing where the appellant was represented by his migration agent by telephone (at [4] of the primary judge’s reasons). The appellant advanced no such claim, despite a proper opportunity being afforded to him. The FCCA was correct to reject this ground for the reasons given. Ground 4 cannot be sustained.

24    This morning, the appellant has not advanced any further grounds upon which he proposed to rely, other than those set out in his notice of appeal. In the circumstances, and for the foregoing reasons, the appeal must be dismissed with costs.

Associate:

Dated:    26 August 2014